In this case, plaintiffs challenge the applicability of certain regulations, promulgated by the Occupational Safety and Health Administration ("OSHA") of the United States Department of Labor, to their operations. The regulations at issue establish a Final Standard Regulating Access to Employee Exposure and Medical Records ("Records Access Standard"). The Records Access Standard has been in effect since May 21, 1980 and requires employers, inter alia, to maintain any employee medical records and records of employee exposure to potentially toxic materials or harmful physical agents for a period of thirty years. 29 U.S.C. § 657(c)(3); 29 C.F.R. § 1910.20.

Plaintiff diving companies engage in commercial diving operations in deepwater United States ports, from installations and artificial islands on the Outer Continental Shelf, and from vessels required to have a Certificate of Inspection from the United States Coast Guard. Plaintiff's Statement of Undisputed Material Facts at paras. 6, 7. Plaintiff Association of Diving Contractors is a trade association whose members include fifty-three companies that employ almost fifty percent of the nation's full-time domestic commercial divers. Id. at P 7. The gist of plaintiffs' argument is that the Records Access Standard is pre-empted by a previously adopted regulation of the United States Coast Guard and therefore cannot be applied to them.

Now before the Court are cross-motions for summary judgment. The Court finds that there are no factual disputes and that summary judgment is the appropriate method for resolution of this case. The Court further finds that the Coast Guard regulations do not pre-empt the Record Access Standard. By virtue of that finding, the Court will deny plaintiffs' motion and will grant defendant's motion for summary judgment.

First, there is no dispute that plaintiffs are commercial divers and that the members of their trade association are commercial diving organizations. Nor is there any dispute that laws and regulations governing commercial divers apply to the individual plaintiffs and to the members of the associational plaintiff. Plaintiffs' Statement of Undisputed Material Facts paras. 6, 7. The only other facts salient to this case are the provisions of the laws and regulations that govern the diving industry; all other issues require only interpretation of those regulations.

The Occupational Safety and Health Act of 1970 was designed to ensure "safe and healthful working conditions" in American industry. 29 U.S.C. § 651(b). To that end, the Act established a series of standards and requirements that apply to industry in general. Section 4(b)(1) of the Act, however, states that OSHA's safety regime does not ". . . apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. § 653(b)(1).

On November 16, 1978, the United States Coast Guard promulgated a Final Marine Occupational Safety and Health Standard for Commercial Diving Operations, codified at 46 C.F.R. § 197.200 et seq. That standard "prescribes rules for the design, construction, and use of equipment, and inspection, operation, and safety and health standards for commercial diving operations" in deepwater ports, on the Outer Continental Shelf, and from vessels required to have a Certificate of Inspection from the United States Coast Guard. 46 C.F.R. §§ 197.200, 197.202. This regulation also mandates that commercial divers create records whenever a diving accident has occurred and maintain those records for a six-month period. Id at §§ 197.484 - 197.488. There is no question that plaintiffs are subject to these regulations.

The Records Access Standard was adopted on May 23, 1980. As mentioned above, this OSHA regulation requires employers to maintain any employee medical records they were previously required to create for a thirty-year period. The regulations provide for employee access to these records and for government access so that the "detection, treatment, and prevention of occupational disease" may be improved. 29 C.F.R. § 1910.20(a).

The only issue in this case is whether the Coast Guard's regulation of commercial divers pre-empts OSHA's Records Access Standards. In other words, whether plaintiffs are subject to the OSHA rule depends only on whether the exemption from OSHA created by Section 4(b)(1) of the Act for regulated "working conditions" can extend to record-keeping and access.

BECAUSE PLAINTIFFS ARE NOT EXEMPT FROM THE RECORDS ACCESS STANDARD, DEFENDANTS ARE ...

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